John Austin

John Austin is considered by many to be the creator of the school of
analytical jurisprudence, as well as, more specifically, the approach
to law known as “legal positivism.” Austin's particular
command theory of law has been subject to pervasive criticism, but its
simplicity gives it an evocative power that continues to attract
adherents.

John Austin's life (1790–1859) was filled with disappointment and
unfulfilled expectations. His influential friends (who included Jeremy
Bentham, James Mill, John Stuart Mill and Thomas Carlyle) were
impressed by his intellect and his conversation, and predicted he
would go far. However, in public dealings, Austin's nervous
disposition, shaky health, tendency towards melancholy, and
perfectionism combined to end quickly careers at the Bar, in academia,
and in government service (Hamburger 1985, 1992).

Austin was born to a Suffolk merchant family, and served briefly in
the military before beginning his legal training. He was called to the
Bar in 1818, but he took on few cases, and quit the practice of law in
1825. Austin shortly thereafter obtained an appointment to the first
Chair of Jurisprudence at the recently established University of
London. He prepared for his lectures by study in Bonn, and evidence of
the influence of continental legal and political ideas can be found
scattered throughout Austin's writings. Commentators have found
evidence in Austin's writings of the German Pandectist treatment of
Roman Law, in particular, its approach to law as something that is, or
should be, systematic and coherent (Schwarz 1934; Stein 1988:
pp. 223–229, 238–244; Lobban 1991: pp. 223–256)

Lectures from the course he gave were eventually published in 1832 as
“Province of Jurisprudence Determined” (Austin 1832).
However, attendance at his courses was small and getting smaller, and
he gave his last lecture in 1833. A short-lived effort to give a
similar course of lectures at the Inner Temple met the same
result. Austin resigned his University of London Chair in 1835. He
later briefly served on the Criminal Law Commission, and as a Royal
Commissioner to Malta, but he never found either success or
contentment. He did some occasional writing on political themes, but
his plans for longer works never came to anything during his lifetime,
due apparently to some combination of perfectionism, melancholy, and
writer's block. His changing views on moral, political, and legal
matters also apparently hindered both the publication of a revised
edition of “Province of Jurisprudence Determined,” and the
completion of a longer project started when his views had been
different.

(There is some evidence that Austin's views later in his life may have
moved away from analytical jurisprudence (see below) towards something more
approximating the historical jurisprudence school (Hamburger 1985:
pp. 178–91).)

Much of whatever success Austin found during his life, and after, must
be attributed to his wife Sarah, for her tireless support, both moral
and economic (during the later years of their marriage, they lived
primarily off her efforts as a translator and reviewer), and her work
to publicize his writings after his death (including the publication
of a more complete set of his Lectures on Jurisprudence) (Austin
1879). Credit should also be given to Austin's influential friends,
who not only helped him to secure many of the positions he held during
his lifetime, but also gave important support for his writings after
his death (Hamburger 1985: pp. 33, 197; Morison 1982: p. 17; Mill
1863).

Austin's work was influential in the decades after his passing away.
E. C. Clark wrote in the late 19th century that Austin's work “is
undoubtedly forming a school of English jurists, possibly of English
legislators also. It is the staple of jurisprudence in all our
systems of legal education.” (Clark 1883: pp. 4–5) A similar
assessment is made by H.L.A. Hart, looking back nearly a century
later: “within a few years of his death it was clear that his
work had established the study of jurisprudence in England”
(Hart 1955: p. xvi). As will be discussed, Austin's influence can be
seen at a number of levels, including the general level of how legal
theory, and law generally, were taught (Stein 1988: pp. 238–244), and
the use of an analytical approach in legal theory. At such levels,
Austin's impact is felt to this day. Hart could write that
“Austin's influence on the development of England of
[Jurisprudence] has been greater than that of any other writer,”
(Hart 1955: p. xvi) even while Austin's particular command theory of
law became almost friendless, and is today probably best known from
Hart's use of it (1958, 1994) as a foil for the elaboration of Hart's
own, more nuanced approach to legal theory. In recent decades, some
theorists have revisited Austin's command theory (and other works),
offering new characterizations and defenses of his ideas (e.g.,
Morison 1982, Rumble 1985).

Early in his career, Austin came under the influence of Jeremy
Bentham, and Bentham's utilitarianism is evident (though with some
differences) in the work for which Austin is best known today. On
Austin's reading of utilitarianism, Divine will is equated with
Utilitarian principles: “The commands which God has revealed we
must gather from the terms wherein they are promulg[ate]d. The
command which he has not revealed, we must construe by the principle
of utility” (Austin 1873: Lecture IV, p. 160; see also Austin
1832: Lecture II, p. 41). This particular reading of
utilitarianism, however, has had little long-term influence, though it
seems to have been the part of his work that received the most
attention in his own day (Rumble 1995: p. xx). Some have also seen
Austin as being one of the early advocates of “rule
utilitarianism.”(e.g., Austin 1832: Lecture II, p. 42,
where Austin urges that we analyze not the utility of particular acts,
but that of “class[es] of action”). Additionally, Austin
early on shared many of the ideas of the Benthamite philosophical
radicals; he was “a strong proponent of modern political
economy, a believer in Hartleian metaphysics, and a most enthusiastic
Malthusian” (Rumble 1985: pp. 16–17). Austin was to lose most
of his “radical” inclinations as he grew older.

Austin's importance to legal theory lies elsewhere—his
theorizing about law was novel at four different levels of
generality. First, he was arguably the first writer to approach the
theory of law analytically (as contrasted with approaches to law more
grounded in history or sociology, or arguments about law that were
secondary to more general moral and political theories). Analytical
jurisprudence emphasizes the analysis of key concepts, including
“law,” “(legal) right,” “(legal)
duty,” and “legal validity.” Though analytical
jurisprudence has been challenged by some in recent years (e.g.,
Leiter 2007a, 2007b), it remains the dominant approach to discussing
the nature of law. Analytical jurisprudence, an approach to theorizing
about law, has sometimes been confused with what the American legal
realists (an influential group of theorists prominent in the early
decades of the 20th century) called “legal
formalism”—a narrow approach to how judges should decide
cases. The American legal realists saw Austin in particular, and
analytical jurisprudence in general, as their opponents in their
critical and reform-minded efforts (e.g., Sebok 1998: pp. 65-69). In
this, the realists were simply mistaken; unfortunately, it is a
mistake that can still be found in some contemporary legal
commentators.

Second, Austin's work should be seen against a background where most
English judges and commentators saw common-law reasoning (the
incremental creation or modification of law through judicial
resolution of particular disputes) as supreme, as declaring existing
law, as discovering the requirements of “Reason,” as the
immemorial wisdom of popular “custom.” Such
(Anglo-American) theories about common law reasoning fit with a larger
tradition of theorizing about law (which had strong roots in
continental European thought—e.g., the historical jurisprudence of
theorists like Karl Friedrich von Savigny (1975)): the idea that
generally law did or should reflect community mores,
“spirit,” or custom. In general, one might look at many
of the theorists prior to Austin as exemplifying an approach that was
more “community-oriented”—law as arising from
societal values or needs, or expressive of societal customs or
morality. By contrast, Austin's is one of the first, and one of the
most distinctive, theories that views law as being “imperium
oriented”—viewing law as mostly the rules imposed from
above from certain authorized (pedigreed) sources. More
“top-down” theories of law, like that of Austin, better
fit the more centralized governments (and the modern political
theories about government) of modern times (Cotterrell 2003:
pp. 21–77).

Third, within analytical jurisprudence, Austin was the first
systematic exponent of a view of law known as “legal
positivism.” Most of the important theoretical work on law prior
to Austin had treated jurisprudence as though it were merely a branch
of moral theory or political theory: asking how should the state
govern? (and when were governments legitimate?), and under what
circumstances did citizens have an obligation to obey the law? Austin
specifically, and legal positivism generally, offered a quite
different approach to law: as an object of “scientific”
study (Austin 1879: pp. 1107–1108), dominated neither by
prescription nor by moral evaluation. Subtle jurisprudential questions
aside, Austin's efforts to treat law systematically gained popularity
in the late 19th century among English lawyers who wanted to approach
their profession, and their professional training, in a more serious
and rigorous manner. (Hart 1955: pp. xvi-xviii; Cotterrell 2003:
pp. 74-77; Stein 1988: pp. 231-244)

Legal positivism asserts (or assumes) that it is both possible and
valuable to have a morally neutral descriptive (or
“conceptual”—though this is not a term Austin used)
theory of law. (The main competitor to legal positivism, in Austin's
day as in our own, has been natural law theory.) Legal positivism does
not deny that moral and political criticism of legal systems is
important, but insists that a descriptive or conceptual approach to
law is valuable, both on its own terms and as a necessary prelude to
criticism.

(The term “legal positivism” is sometimes used more
broadly to include the position that we should construct or modify our
concept of law to remove moral criteria of legal validity; or to
include a prescription that moral values should not be used in
judicial decision-making (Schauer 2010—see the Other Internet
Resources). I do not think anything turns on whether the term is used
more broadly or more narrowly, as long as it is clear which sense is
being used. Additionally, while Schauer claims (2010) that Austin
could be seen as supporting some of the views associated with the
broader understanding of “legal positivism”, there is need
for more evidence and argument before the point should be
granted.)

There were theorists prior to Austin who arguably offered views
similar to legal positivism or who at least foreshadowed legal
positivism in some way. Among these would be Thomas Hobbes, with his
amoral view of laws as the product of Leviathan (Hobbes 1996); David
Hume, with his argument for separating “is” and
“ought” (which worked as a sharp criticism for some forms
of natural law theory, which purported to derive moral truths from
statements about human nature) (Hume 1739); and Jeremy Bentham, with
his attacks on judicial lawmaking and on those, like Sir William
Blackstone, who justified such lawmaking with natural-law-like
justifications (Bentham 1789).

Austin's famous formulation of what could be called the “dogma” of
legal positivism is as follows:

The existence of law is one thing; its merit or demerit is
another. Whether it be or be not is one enquiry; whether it be or be
not conformable to an assumed standard, is a different enquiry. A law,
which actually exists, is a law, though we happen to dislike it, or
though it vary from the text, by which we regulate our approbation and
disapprobation. (Austin 1832: Lecture V, p. 157)

(While Austin saw himself as criticizing natural law theory, a view
shared by most of the legal positivists who followed him, the extent
to which the two schools disagree, and the location of their
disagreement, remains a matter sharply contested (e.g., Finnis 1996,
2000; Bix 2000).)

Fourth, Austin's version of legal positivism, a “command theory
of law” (which will be detailed in the next section), was also,
for a time, quite influential. Austin's theory had similarities with
views developed by Jeremy Bentham, whose theory could also be
characterized as a “command theory.” Bentham, in a
posthumously published work, would define law as:

…as assemblage of signs declarative of a volition conceived or
adopted by the sovereign in a state, concerning the conduct to
be observed in a certain case by a certain person or class of
persons, who in the case in question are or are supposed to be subject
to his power: such volition trusting for its accomplishment to the
expectation of certain events which it is intended such declaration
should upon occasion be a means of bringing to pass, and the prospect
of which it is intended should act as a motive upon those whose
conduct is in question. (Bentham 1970: p. 1)

However, Austin's command theory was more influential than Bentham's,
because the latter's jurisprudential writings did not appear in an
even-roughly systematic form until well after Austin's work had
already been published, with Bentham's most systematic discussion only
appearing posthumously, late in the 20th century (Bentham 1970, 1996;
Cotterrell 2003: p. 50).

Austin's basic approach was to ascertain what can be said generally,
but still with interest, about all laws. Austin's analysis can be seen
as either a paradigm of, or a caricature of, analytical philosophy, in
that his discussions are dryly full of distinctions, but are thin in
argument. The modern reader is forced to fill in much of the
meta-theoretical, justificatory work, as it cannot be found in the
text. Where Austin does articulate his methodology and objective, it
is a fairly traditional one: he “endeavored to resolve a
law (taken with the largest signification which can be given
to that term properly) into the necessary and essential
elements of which it is composed” (Austin 1832: Lecture V,
p. 117).

As to what is the core nature of law, Austin's answer is that laws
(“properly so called”) are commands of a sovereign. He
clarifies the concept of positive law (that is, man-made law) by
analyzing the constituent concepts of his definition, and by
distinguishing law from other concepts that are similar:

“Commands” involve an expressed wish that something be
done, combined with a willingness and ability to impose “an
evil” if that wish is not complied with.

Rules are general commands (applying generally to a class), as
contrasted with specific or individual commands (“drink wine
today” or “John Major must drink wine”).

Positive law consists of those commands laid down by a sovereign
(or its agents), to be contrasted to other law-givers, like God's
general commands, and the general commands of an employer to an
employee.

The “sovereign” is defined as a person (or determinate
body of persons) who receives habitual obedience from the bulk of the
population, but who does not habitually obey any other (earthly)
person or institution. Austin thought that all independent political
societies, by their nature, have a sovereign.

Positive law should also be contrasted with “laws by a close
analogy” (which includes positive morality, laws of honor,
international law, customary law, and constitutional law) and
“laws by remote analogy” (e.g., the laws of physics).
(Austin 1832: Lecture I).

Austin also wanted to include within “the province of
jurisprudence” certain “exceptions,” items which did
not fit his criteria but which should nonetheless be studied with other
“laws properly so called”: repealing laws, declarative
laws, and “imperfect laws”—laws prescribing action
but without sanctions (a concept Austin ascribes to “Roman [law]
jurists”) (Austin 1832: Lecture I, p. 36).

In the criteria set out above, Austin succeeded in delimiting law and
legal rules from religion, morality, convention, and custom. However,
also excluded from “the province of jurisprudence” were
customary law (except to the extent that the sovereign had, directly
or indirectly, adopted such customs as law), public international law,
and parts of constitutional law. (These exclusions alone would make
Austin's theory problematic for most modern readers.)

Within Austin's approach, whether something is or is not
“law” depends on which people have done what: the question
turns on an empirical investigation, and it is a matter mostly of
power, not of morality. Of course, Austin is not arguing that law
should not be moral, nor is he implying that it rarely is. Austin is
not playing the nihilist or the skeptic. He is merely pointing out
that there is much that is law that is not moral, and what makes
something law does nothing to guarantee its moral value. “The
most pernicious laws, and therefore those which are most opposed to
the will of God, have been and are continually enforced as laws by
judicial tribunals” (Austin 1832: Lecture V, p. 158).

In contrast to his mentor Bentham, Austin, in his early lectures,
accepted judicial lawmaking as “highly beneficial and even
absolutely necessary” (Austin, 1832: Lecture V,
p. 163). Nor did Austin find any difficulty incorporating judicial
lawmaking into his command theory: he characterized that form of
lawmaking, along with the occasional legal/judicial recognition of
customs by judges, as the “tacit commands” of the
sovereign, the sovereign's affirming the “orders” by its
acquiescence (Austin 1832: Lecture 1, pp. 35–36). It should be
noted, however, that one of Austin's later lectures listed the many
problems that can come with judicial legislation, and recommended
codification of the law instead (Austin 1879: vol. 2, Lecture XXXIX,
pp. 669–704).

As many readers come to Austin's theory mostly through its criticism
by other writers (prominently, that of H.L.A. Hart; see also Kelsen
1941: 54-66), the weaknesses of the theory are almost better known
than the theory itself:

First, in many societies, it is hard to identify a
“sovereign” in Austin's sense of the word (a difficulty
Austin himself experienced, when he was forced to describe the British
“sovereign” awkwardly as the combination of the King, the
House of Lords, and all the electors of the House of
Commons). Additionally, a focus on a “sovereign” makes it
difficult to explain the continuity of legal systems: a new ruler will
not come in with the kind of “habit of obedience” that
Austin sets as a criterion for a system's rule-maker.

A few responses are available to those who would defend Austin.
First, some commentators have argued that Austin is here
misunderstood, in that he always meant “by the sovereign
the office or
institution which embodies supreme authority; never the
individuals who happen to hold that office or embody that institution
at any given time” (Cotterrell 2003: p. 63, footnote omitted);
there are certainly parts of Austin's lectures that support this
reading (e.g., Austin 1832: Lecture V, pp. 128–29; Lecture
VI, p. 218).

Secondly, one could argue (see Harris 1977) that the sovereign is
best understood as a constructive metaphor: that law should be viewed
as if it reflected the view of a single will (a similar view, that law
should be interpreted as if it derived from a single will, can be
found in Ronald Dworkin's work (1986: pp. 176–190)).

Thirdly, one could argue that Austin's reference to a sovereign
whom others are in the habit of obeying but who is not in the habit of
obeying anyone else, captures what a “realist” or
“cynic” would call a basic fact of political life. There
is, the claim goes, entities or factions in society that are not
effectively constrained, or could act in an unconstrained way if they
so chose. For one type of example, one could point out that if there
was a sufficiently large and persistent majority among the United
States electorate, nothing could contain them: they could elect
Presidents and legislators who would amend the Constitution and,
through those same officials, appoint judges who would interpret the
(revised or original) Constitution in a way amenable to their
interests. A different sort of example (and some would say that there
are recent real-life examples of this type) would be a President who
ignored the constraints of statutory law, constitutional law, and
international treaty commitments, while the public and other officials
lacked the will or the means to hold that President to the legal norms
that purported to constrain his or her actions.

As regards Austin's “command” model, it seems to fit
some aspects of law poorly (e.g., rules which grant powers to
officials and to private citizens—of the latter, the rules for
making wills, trusts, and contracts are examples), while excluding
other matters (e.g., international law) which we are not inclined to
exclude from the category “law.”

More generally, it seems more distorting than enlightening to
reduce all legal rules to one type. For example, rules that empower
people to make wills and contracts perhaps can be
re-characterized as part of a long chain of reasoning for eventually
imposing a sanction (Austin spoke in this context of the sanction of
“nullity”) on those who fail to comply with the relevant
provisions. However, such a re-characterization misses the basic
purpose of those sorts of laws—they are arguably about granting
power and autonomy, not punishing wrongdoing.

A different criticism of Austin's command theory is that a theory
which portrays law solely in terms of power fails to distinguish rules
of terror from forms of governance sufficiently just that they are
accepted as legitimate (or at least as reasons for action) by their
own citizens.

Finally, one might note that the constitutive rules that determine
who the legal officials are and what procedures must be followed in
creating new legal rules, “are not commands habitually obeyed,
nor can they be expressed as habits of obedience to persons”
(Hart 1958: p. 603).

(Austin was aware of some of these lines of attack, and had responses
ready; it is another matter whether his responses were adequate.) It
should also be noted that Austin's work shows a silence on questions
of methodology, though this may be forgivable, given the early stage
of jurisprudence. As discussed in an earlier section, in many ways,
Austin was blazing a new path. On matters of methodology, later
commentators on Austin's work have had difficulty determining whether
he is best understood as making empirical claims about the law or
conceptual claims; elements of each sort of approach can be found in
his writings (Lobban 1991: pp. 224–225; Cotterrell 2003:
pp. 81–83).

When H.L.A. Hart revived legal positivism in the middle of the
20th century (Hart 1958, 1994), he did it by criticizing
and building on Austin's theory: for example, Hart's theory did not
try to reduce all legal rules to one kind of rule, but emphasized the
varying types and functions of legal rules; and Hart's theory,
grounded partly on the distinction between “obligation”
and “being obliged,” was built around the fact that some
participants within legal systems “accepted” the legal
rules as reasons for action, above and beyond the fear of sanctions.
Hart's “hermeneutic” approach, building on the
“internal point of view” of participants who accepted the
legal system, diverged sharply from Austin's approach to law.

Some modern commentators appreciate in Austin elements that were
probably not foremost in his mind (or that of his contemporary
readers). For example, one occasionally sees Austin portrayed as the
first “realist”: in contrast both to the theorists that
came before Austin and to some modern writers on law, Austin is seen
as having a keener sense of the connection of law and power, and the
importance of keeping that connection at the forefront of
analysis (cf. Cotterrell 2003: pp. 49–77). One commentator wrote:

Austin's theory is not a theory of the Rule of Law: of government
subject to law. It is a theory of the ‘rule of men’: of
government using law as an instrument of power. Such a view may be
considered realistic or merely cynical. But it is, in its broad
outlines, essentially coherent. (Cotterrell 2003: p. 70)

When circumstances seem to warrant a more critical, skeptical or
cynical approach to law and government, Austin's equation of law and
force will be attractive—however distant such a reading may be
from Austin's own liberal-utilitarian views at the time of his
writing, or his more conservative political views later in his
life (Hamburger, 1985).